Sunday, April 27, 2008

More on "He Who Would Be King."

Friend and fellow musician, Dennis D., challenged my depiction of Bush junior as "He Who Would Be King." This was several weeks ago and I have been systematically researching my hypothesis since that time wanting to be as complete as I can in responding. Before I start my response, however, to show what a reasonable person I am, I am willing to stop calling Bush the objected-to name and instead refer hereafter to him as the "tin pot Genghis Khan of Crawford, Texas." My preference is the former designation and I woujd submit that after reading the remainder of this entreaty, you will understand why.

The perfect entree presented today is an NY Times editorial about Laura Berg, a nurse, who wrote a letter to a newspaper in the southwest United States. The Times notes: "Ms. Berg identified herself as a V.A. nurse when, soon after Katrina’s horrors, she sent her impassioned letter to The Alibi, a paper in Albuquerque. “I am furious with the tragically misplaced priorities and criminal negligence of this government,” she wrote. “We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.”"Her superiors at the hospital soon alerted the Federal Bureau of Investigation and impounded her office computer, where she keeps the case files of war-scarred veterans she treats. Then she received an official warning in which a Veterans Affairs investigator intoned that her letter “potentially represents sedition." ”

Is it possible to imagine that in a land with a Constitution that guarantees freedom of expression and speech that a person lawfully exercising such a right is potentially accused by her government of sedition? These kinds of things only occur in countries like Russia which only recently shut down a newspaper for reporting that Putin had a mistress,. or they occur in a monarchy when the King or Queen is offended. I submit that such an incident occurring here is only symptomatic of Bush's near total derogation of the constitutional underpinnings of this great country in his quest to be King.

The climate to allow such a potential has not happened by accident, nor do I over-react to my observations in support of my contention that my designation is apt. Underlying the problems of presidential power seems to be the White House's murky and largely undefined doctrine of the Unitary Executive which, in their view, allows the president to thumb his nose at both the legislatve and judicial branches of government.

Can anyone believe that the original intent of the framers and signers of our great Constitution intended to create a presidency with powers akin to those of King George III of England?

Shouldn't the media, the Democrats, and yes all Americans be asking the question: Do we now or ever want an "activist" president who legislates and adjudicates from the Oval Office? That is what kings do. Our founding fathers, exquisitely aware of the dangers of the monarchial form of government, specifically and uniquely designed our tripartite form of government based upon the principle of separation of powers. The first part of my response is to look as the issue of signing statements, a written indication of how the President is interpreting an act passed by Congress, and direct executive agencies to apply the law according to the president's interpretation of the Constitution. IN 2006, A bipartisan Taskforce on Presidential Signing Statements of the American Bar Assn. basically found that, although signing statements, in general, are legal, Bush, in many instances, misused this power in a manner that skirted the law and was unconstitutional. What follows is a brief time line of some of the most egregious abuses:

2001January

Presidential directive delays indefinitely the scheduled release of presidential documents (authorized by the Presidential Records Act of 1978) pertaining to the Reagan-Bush administration. Bush and Cheney begin process of radically broadening scope of documents and information which can be deemed classified.

February

The National Security Agency (NSA) sets up Project Groundbreaker, a domestic call monitoring program infrastructure. Link

Spring

Bush administration order authorizes NSA monitoring of domestic phone and internet traffic. September

In immediate aftermath of 9-11 terror attacks, Department of Justice authorizes detention without charge for any terror suspects. Over one thousand suspects are brought into detention over the next several months.

October

Attorney General John Ashcroft announces change in Department of Justice (DOJ) policy. According to the new policy DOJ will impose far more stringent criteria for the granting of Freedom of Information Act requests.September-October

NSA launches massive new database of information on US phone calls.October

The USA Patriot Act becomes law. Among other things the law: makes it a crime for anyone to contribute money or material support for any group on the State Department’s Terror Watch List, allows the FBI to monitor and tape conversations between attorneys and clients, allows the FBI to order librarians to turn over information about patron’s reading habits, allows the government to conduct surveillance on internet and email use of US citizens without notice. The act also calls for expanded use of National Security Letters (NSLs), which allow the FBI to search telephone, email and financial records of US citizens without a court order, exempts the government from needing to reveal how evidence against suspected terrorists was obtained and authorizes indefinite detention of immigrants at the discretion of law enforcement and immigration authorities.

November

Executive order limits release of presidential documents. The order gives incumbent presidents the right to veto requests to open any past presidential records and supercedes the congressionally passed law of 1978 mandating release of all presidential records not explicitly deemed classified.

2002

Winter

FBI and Department of Defense (DOD), forbidden by law from compiling databases on US citizens, begin contracting with private database firm ChoicePoint to collect, store, search and maintain data.

Spring

Secret executive order issued authorizing NSA to wiretap the phones and read emails of US citizens. Spring

Transportation Security Adminstration (TSA) acknowledges it has created both a “No Fly” and a separate “Watch” list of US travelers.

May

Department of Justice authorizes the FBI to monitor political and religious groups. The new rules permit the FBI to broadly search or monitor the internet for evidence of criminal activity without having any tips or leads that a specific criminal act has been committed.

November

Homeland Security Act of 2002 establishes separate Department of Homeland Security. Among other things the department will federally coordinate for the first time all local and state law enforcement nationwide and run a Directorate of Information and Analysis with authority to compile comprehensive data on US citizens using public and commercial records including credit card, phone, bank, and travel. The department also will be exempt form Freedom of Information Act disclosure requirements. The Homeland Security department’s jurisdiction has been widely criticized for being nebulously defined and has extended beyond terrorism into areas including immigration, pornography and drug enforcement.

2003

February

Draft of Domestic Security Enhancement Act (aka Patriot Act 2), a secret document prepared by the Department of Justice is leaked by the Center for Public Integrity. Provisions of the February 7th draft version included:

The FBI would be granted powers to conduct searches and surveillance based on intelligence gathered in foreign countries without first obtaining a court order.

Creation of a DNA database of suspected terrorists.

Prohibition of any public disclosure of the names of alleged terrorists including those who have been arrested.

Exemptions from civil liability for people and businesses who voluntarily turn private information over to the government.

Criminalization of the use of encryption to conceal incriminating communications.

Automatic denial of bail for persons accused of terrorism-related crimes, reversing the ordinary common law burden of proof principle. All alleged terrorists would be required to demonstrate why they should be released on bail rather than the government being required to demonstrate why they should be held.

Expansion of the list of crimes eligible for the death penalty.

The United States Environmental Protection Agency would be prevented from releasing "worst case scenario" information to the public about chemical plants.

United States citizens whom the government finds to be either members of, or providing material support to, terrorist groups could have their US citizenship revoked and be deported to foreign countries.

Although the bill itself has never (yet) been advanced in congress due to public exposure, some of its provisions have become law as parts of other bills. For example The Intelligence Authorization Act for Fiscal Year 2004 grants the FBI unprecedented power to obtain records from financial institutions without requiring permission from a judge. Under the law, the FBI does not need to seek a court order to access such records, nor does it need to prove just cause.

March

Executive order issued which radically tightens the declassification process of classified government documents, as well as making it far easier for government agencies to make and keep information classified. The order delayed by three years the release of declassified government documents dating from 1978 or earlier. It also allowed the government to treat all material sent to American officials from foreign governments -- no matter how routine -- as subject to classification, and expanded the ability of Central Intelligence Agency (CIA) to shield documents from declassification. Finally it gave the vice president the power to classify information.

April

In Demore v. Kim, the Supreme Court ruled that even permanent residents could be subject to mandatory detention when facing deportation based on a prior criminal conviction, without any right to an individualized hearing to determine whether they were dangerous or a flight risk.

Fall

The FBI changes its traditional policy of destroying all data and documents collected on innocent citizens in the course of criminal investigations. This information would, according to the bureau, now be permanently stored. Two years later in late 2005 Executive Order 13388, expanded access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

Fall

As authorized by the Patriot Act, the FBI expands the practice of national security letters. NSLs, originally introduced in the 1970s for espionage and terrorism investigations, enabled the FBI to review in secret the customer records of suspected foreign agents. This was extended by the Patriot Act to include permitting clandestine scrutiny of all U.S. residents and visitors whether suspected of terrorism or not.

2004

January

The FBI begins keeping a database of US citizens based on information obtained via NSLs. Spring

John Ashcroft invokes State Secrets privilege to forbid former FBI translator Sibel Edmunds from testifying in a case brought by families of victims of the 9-11 attacks. Litigation by 9-11 families is subsequently halted.

2006

March

Senate passes amended version of Patriot Act, reauthorization, with three basic changes from the original including: recipients of secret court orders to turn over sensitive information on individuals linked to terrorism investigations are not allowed to disclose those orders but can challenge the gag order after a year, libraries would not be required to turn over information without the approval of a judge, recipients of an FBI "national security letter" -- an investigator's demand for access to personal or business information -- would not have to tell the FBI if they consult a lawyer. New bill also said to extend Congressional oversight over executive department usage guidelines. Shortly after bill is signed George Bush declares oversight rules are not binding.

2007

May

National Security Presidential Directive 51 (NSPD-51) establishes a new post-disaster plan (with disaster defined as any incident, natural or man-made, resulting in extraordinary mass casualties, damage or disruption) which places the president in charge of all three branches of government. The directive overrides the National Emergencies Act which gives Congress power to determine the duration of a national emergency.

July

Executive Order 13438: "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq, issued. The order asserts the government’s power to confiscate the property “of persons determined to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of threatening the peace or stability of Iraq or the Government of Iraq or undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people."

In my desire to capture the flavor of the Bush administration I have undoubtedly missed many examples and I will point out that Bush has used signing statements far more than any other president in history to carry out his Unitary Executive theme. However, I can summarize the net result of the above-type activities by noting that the president, according to the Bush Administration, may now initiate preventive war and institute domestic surveillance of American's telephone calls and e-mail messages, all without specific congressional authorization, may designate, seize and detain any American citizen as an "enemy combatant," and imprison him in solitary confinement, indefinitely, without access to legal counsel and a judicial hearing, suspend the Geneva Convention and federal laws that prohibit torture. Further, keeping in mind that the U.S. Constitution specifically authorizes Congress the war power, among other powers asserted, the president, as Commander in Chief, may establish military tribunals, terminate treaties, order acts of extraordinary rendition, and take actions that he perceives necessary to the maintenance of national security and the common defense. Under this theory, any law that restricts the Commander in Chief's authority is presumptively unconstitutional. At all events, it is claimed, the president may exercise an "override" authority in the unlikely event that Congress would by statute seek to restrain the president. It is likely that no one in the free world has heard such raw assertions of executive power since Oliver Cromwell anointed himself "Lord Protector" of England.